UID:
edocfu_9958911297302883
Umfang:
1 online resource (227 p.)
ISBN:
3-428-50945-5
Serie:
Schriften zur Rechtstheorie, Heft 215/2
Inhalt:
Hauptbeschreibung Teaching and study of law is based on the premises of formal dogma. Discussion centres on what the law says, and less on the Instruments enabling its application, such as legal argumentation and reasoning. The approach to the new legal and institutional challenges facing the European Union is not immune to this problem. Little public attention is paid to actual law emanating from EU institutions, and even less to its application. However, at least three issues of vital importance can easily be seen to originate in this field: (1) Does legal harmonisation a
Anmerkung:
Papers and discussions resulted from a series of three international conferences.
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Contents; Introduction; Isabel Turégano Mansilla: Constitution and Democracy in the European Construction Process. Regarding Some Reflections by Jürgen Habermas; 1. Introduction; 2. European Constitution and Constituent Power; 3. Democracy and Rights; 4. Constitution and Citizenship; 5. European Constitution and Constitutional Jurisdiction; References; Giorgio Maniaci: The Role of Rationality in Judicial Argumentation; 1. Introduction; 2. How and Why Normative Statements Should Be 'Objectively Founded'; 3. The Sense and the Limits of a Rational Argumentative Procedure
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4. The Indeterminacy's Objection5. Rational Discourse and Judicial Argumentation; 6. Conclusion; References; Ofer Raban: Legislation, Adjudication, and Justification; 1. Legislation; 1.1. The Principle of Public Justification; 1.2. The Relation Between the Category and the Treatment; 1.3. Arbitrary Distinctions?; 1.4. Recharacterizing the Problem with Checkerboard Statutes; 1.5. Recognizing Justifications; 1.6. Is all this Significant?; 2. Legal Interpretation; 2.1. Public Justification, Legal Interpretation, and Contemporary Legal Positivism; 2.3. Legislative Intention; 3. Conclusion
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ReferencesVéronique Champeil-Desplats: Legal Reasoning and Plurality of Values: Axio-Teleological Conflicts of Norms; 1. The Characteristics of Axio-Teleological Conflicts; 2. Two Models of Resolution of Axio-Teleological Conflicts; 2.1. The Exclusive Normative Base Model; 2.2. The Plurality of the Normative Bases Model; 3. The Choice of a Mode of Resolution of Conflicts and the Exercise of Normative Competences; 3.1. Reasons for the Choice: Between Discretionary Appreciation and Constraint; 3.2. Effects of the Choice: Between a Position of Principle and the Reign of the Circumstances
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ReferencesIsabel Lifante Vidal: Interpretation and Judicial Discretion; 1. Introduction; 2. Usual Approaches to the Phenomenon of Discretion; 2.1. The Meaning of Discretion; 2.1.1. The Choice among Different Alternatives; 2.1.2. The Absence of Applicable Legal Standards; 2.1.3. The Absence of Reviewability or the Ultimate Character of the Decision; 2.2. The Origin of Discretion; 3. A Few Conceptual Points; 3.1. Discretion as "Freedom"; 3.2. The Indeterminacy of Law; 3.3. Power and Discretion; 3.4. Summing up: Two Different Phenomena under the Heading "Discretion"; 4. Discretionary Powers
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ReferencesGema Marcilla Córdoba: Iura Novit Curia, Law Crisis, and the European Building Process; 1. The Aphorism Iura Novit Curia; 1.1. Normative Status; 1.2. Meaning and Foundation of the Presumption "The Court Knows the Law"; 2. The Ideological Function of the Principle Iura Novit Curia: From the "Mechanistic" Thesis of Interpretation and Application of Law to the Theory of "Discretionality"; 3. Legal Knowledge, Rule of Law and the Theory of Legal Argumentation; 4. Law Crisis, Normative Inflation and European Building Process; 5. The Quality of Laws and Legislative Techniques; References
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Giulio Itzcovich: Sovereignty, Legal Pluralism, and Fundamental Rights. Italian Jurisprudence and European Integration (1964-1973)
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English
Weitere Ausg.:
ISBN 3-428-10945-7
Sprache:
Englisch
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